Com. v. Williams, A.

C
J-S07015-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AARON MICHAEL WILLIAMS                     :
                                               :
                       Appellant               :   No. 559 WDA 2020

        Appeal from the Judgment of Sentence Entered January 28, 2020
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0002225-2017


BEFORE: SHOGAN, J., DUBOW, J., and KING, J.

MEMORANDUM BY SHOGAN, J.:                                    FILED: MAY 20, 2021

       Appellant, Aaron Michael Williams, appeals from the judgment of

sentence entered on January 28, 2020, after a jury found Appellant guilty of

three counts of Possession with Intent to Deliver (“PWID”), three counts of

Delivery of a Controlled Substance, and three counts of Possession of a

Controlled Substance.1        After careful review, we affirm the judgment of

sentence.

       We set forth the following procedural and factual history. In 2015,

several members of the Pennsylvania Attorney General’s Office, the Plum

Borough Police Department and the Penn Hills Police Department were part of

a drug task force investigating whether Appellant was selling illegal narcotics.

____________________________________________


1  35 P.S. §§        780-113(a)(30),       780-113(a)(30),    and   780-113(a)(16),
respectively.
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On March 31, 2015, a confidential informant (“CI”) contacted Appellant at

cellular telephone number 412.612.0668 and arranged to purchase heroin.

N.T. (Trial), 10/23/19, at 95. Police searched the CI and provided officially

documented funds to the CI to purchase the heroin.     Id. at 115. The CI and

Detective Joseph Signorella drove to a residential location on Mt. Carmel Road.

The CI was driving, and Detective Signorella was a passenger. Id. at 114.

Several other officers were present near the location, providing cover. Id. at

79, 219.   Appellant approached the CI and Detective Signorella from the

driver’s side of the automobile, and the funds were exchanged for drugs. Id.

at 115. In addition to the CI and Detective Signorella, Detective Kenneth

Farmerie was positioned in such a manner that he observed the transaction

between the CI and Appellant. N.T. (Trial), 10/24/19, at 270. The CI handed

the drugs to Detective Signorella, and they left the location.    N.T. (Trial),

10/23/19, at 115. After returning to the predetermined location, Detective

Signorella counted fifty stamp bags of heroin, marked “Total Control.” Id.

      A second controlled-buy took place on May 4, 2015.         The CI again

contacted Appellant at phone number 412.612.0668. N.T. (Trial), 10/24/19,

at 275-276. Appellant directed the CI and Police Officer William Moore, an

individual associated with the task force, to a Shop ‘n Save grocery store in

Penn Hills. N.T. (Trial), 10/23/19, at 139. Officer Moore drove the CI’s car to

the location, and the CI was in the passenger’s seat. Id. at 141. Multiple

officers provided cover and surveillance. N.T. (Trial), 10/24/19, at 271. After


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Appellant arrived at the Shop ‘n Save, the CI left the automobile and entered

the passenger side of Appellant’s vehicle.      N.T. (Trial), 10/23/19, at 143.

Officer Moore watched Appellant and the CI exchange money and drugs. Id.

at 144. The CI then exited Appellant’s vehicle and entered the automobile

with Officer Moore. Officer Moore took custody of the heroin, and he and the

CI returned to their original location.   Id.   At that location, Officer Moore

counted fourteen bags of heroin marked “Tap Out.” Id. at 145. After realizing

they had not received all the heroin they had agreed to purchase, the CI and

Officer Moore texted Appellant at the same 412 phone number, and Appellant

agreed to provide additional heroin the following day. Id. at 145-146. The

parties agreed to meet at a shopping plaza near the Shop ‘n Save. Id. at

146-147.

      On May 5, 2015, Officer Moore and the CI drove to the shopping plaza

parking lot. After Appellant arrived, the CI and Appellant exited their vehicles,

exchanged greetings, and entered Appellant’s vehicle, with Appellant on the

driver’s side and the CI on the passenger’s side. Id. at 148. Multiple officers

provided cover and surveillance. Officer Moore observed the CI and Appellant

exchange the official funds for heroin. Id. at 149. Another officer, Officer

Darryl Granata, testified that he and every other officer who provided cover

observed Appellant.    N.T. (Trial), 10/24/19, at 235.      Chief Michael Klein

testified that he observed Appellant through a monocular to be sure he could

identify him, but noted that given the short distance between them, the


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monocular was not necessary. Id. at 244-245.        The CI returned to Officer

Moore’s vehicle, and they drove to the designated meet spot where the stamp

bags were counted and entered into evidence. The seven stamp bags were

marked “Fun Power.” N.T. (Trial), 10/23/19, at 151.

      The fourth controlled-buy took place on May 28, 2015. The CI contacted

Appellant and arranged to purchase two bundles of heroin for $150.00. N.T.

(Trial), 10/23/19, at 171.    The CI contacted Appellant using a different

telephone number than the one used in the previous buys. Id. The CI drove

Officer Signorella to a residential area in Penn Hills.   Id. at 172.   Multiple

officers provided cover and surveillance. Id. at 181. Appellant drove up, and

the cars were positioned driver’s side window to driver’s side window. Id. at

172. The CI handed Appellant the official funds, and Appellant handed the CI

a pack of Newport cigarettes containing approximately twenty-four stamp

bags of heroin. Id. at 173. Officer Signorella and the CI returned to their

initial location, and another detective counted the stamp bags of heroin. Id.

The bags were stamped with the words “Top Five.” Id. at 175. Appellant

subsequently was arrested.

      On June 15, 2017, Appellant filed an Omnibus Pretrial Motion including,

inter alia, a Motion to Disclose the Identity, Address and Communications of

Confidential Informant and a Motion to Sever Charges. Appellant’s Omnibus

Pretrial Motion, 6/15/17. Appellant filed amended Omnibus Pretrial Motions

on September 7, 2017, and April 17, 2018. The trial court held a hearing on


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Appellant’s various pretrial motions on May 5, 2018 and denied Appellant’s

motion to sever following argument at the hearing. N.T. (Motions Hearing),

5/11/18, at 52-54. Following the hearing, the trial court requested additional

briefs on the subject of the identification of the CI. Id. at 98. Appellant filed

an additional brief on May 14, 2018, and the trial court denied the motion on

May 15, 2018. Order, 5/15/18.

      Appellant was tried before a jury on March 26 and 27, 2019. The jury

was unable to reach a unanimous verdict, and the case ended in a mistrial.

N.T. (March Trial), 3/27/19, at 406. Appellant proceeded to a second jury

trial on October 22, 2019. After all the evidence had been received, Appellant

requested that the trial court give jury instruction 3.21A, Failure to Call a

Potential Witness. N.T. (Trial), 10/24/19, at 352. The trial court denied the

request. Id.

      The jury found Appellant guilty of three counts of Delivery of a

Controlled Substance, three counts of PWID, and three counts of Possession.

The jury found Appellant not guilty of counts four, five, and six, which were

charges stemming from the May 4, 2015 buy.             Appellant proceeded to

sentencing on January 28, 2020.       The trial court sentenced Appellant to

twenty-one to forty-two months of incarceration and two years of probation

for each of the Delivery convictions with the remaining charges merging; thus,

Appellant received an aggregate sentence of sixty-three to 126 months of

incarceration followed by six years of probation. Order of Sentence, 1/18/20.


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Appellant filed a timely post-sentence motion, which the trial court denied.2

Order, 4/15/20.

       Appellant filed a timely notice of appeal on May 14, 2020. Appellant

filed his Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on

Appeal on June 19, 2020. On July 2, 2020, the Honorable Bruce Beemer filed

a letter with this Court transmitting the record without judicial opinion.

       Appellant presents the following three questions for our review:

       I.     Did the trial court err in failing to disclose the identity of the
              CI where the disclosure was material and reasonable, and
              [Appellant’s] right to a defense outweighed the
              Commonwealth’s speculative claims about the CI’s safety?

       II.    Did the trial court err in denying the motion to sever where
              consolidation of the offenses unduly prejudiced [Appellant],
              the evidence of each offense would not have been
              admissible in a separate trial, and/or the evidence was
              capable of separation by the jury?

       III.   Did the trial court err in denying [Appellant’s] request for an
              adverse inference jury instruction where the CI was not
              available to the defense, and possessed material
              information that was not merely cumulative?

    Appellant’s Brief at 8 (full capitalization omitted).

       In his first issue, Appellant argues that the trial court erred when it

denied Appellant’s motion to disclose the identity of the CI. Appellant’s Brief

at 21. In support, Appellant claims the Commonwealth presented no evidence


____________________________________________


2 Appellant’s trial counsel, Wendy Williams, filed a petition to withdraw as
counsel on February 6, 2020. The trial court granted the petition and
appointed the Allegheny County Public Defender’s Office to represent
Appellant during his appeal. Order of Court, 2/21/20.

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other than that of police officers, who had obstructed or distant views of the

transactions, and the identity of the CI was material to Appellant’s defense of

mistaken identity.   Id.

      “Our standard of review of claims that a trial court erred in its
      disposition of a request for disclosure of an informant’s identity is
      confined    to    abuse    of    discretion.” Commonwealth        v.
      Washington, 63 A.3d 797, 801 (Pa. Super. 2013).

            Under Pennsylvania Rule of Criminal Procedure 573, a
            trial court has the discretion to require the
            Commonwealth to reveal the names and addresses of
            all eyewitnesses, including confidential informants,
            where a defendant makes a showing of material need
            and reasonableness:

            (a)   In all court cases, except as otherwise provided
                  in Rule 230 (Disclosure of Testimony Before
                  Investigating Grand Jury), if the defendant files
                  a motion for pretrial discovery, the court may
                  order the Commonwealth to allow the
                  defendant’s attorney to inspect and copy or
                  photograph any of the following requested
                  items, upon a showing that they are material to
                  the preparation of the defense, and that the
                  request is reasonable:

            (i) the names and addresses of eyewitnesses....

            Pa.R.Crim.P. 573(B)(2)(a)(i).

      The Commonwealth enjoys a qualified privilege to withhold the
      identity of a confidential source. Commonwealth v. Bing, [551
      Pa. 659, 713 A.2d 56 (1998)]; Commonwealth v. Roebuck, 545
      Pa. 471, 681 A.2d 1279, 1283 n. 6 (1996). In order to overcome
      this qualified privilege and obtain disclosure of a confidential
      informant’s identity, a defendant must first establish, pursuant to
      Rule 573(B)(2)(a)(i), that the information sought is material to
      the preparation of the defense and that the request is reasonable.
      Roebuck, supra at 1283. Only after the defendant shows that
      the identity of the confidential informant is material to the defense
      is the trial court required to exercise its discretion to determine

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      whether the information should be revealed by balancing relevant
      factors, which are initially weighted toward the Commonwealth.
      Bing, supra at 58; Commonwealth v. Herron, 475 Pa. 461, 380
      A.2d 1228 (1977).

      In striking the proper balance, the court must consider the
      following principles:

            A further limitation on the applicability of the privilege
            arises from the fundamental requirements of fairness.
            Where the disclosure of an informer’s identity, or of
            the contents of his communication, is relevant and
            helpful to the defense of an accused, or is essential to
            a fair determination of a cause, the privilege must give
            way. In these situations[,] the trial court may require
            disclosure and, if the Government withholds the
            information, dismiss the action.

            [N]o fixed rule with respect to disclosure is justifiable.
            The problem is one that calls for balancing the public
            interest in protecting the flow of information against
            the individual’s right to prepare his defense. Whether
            a proper balance renders nondisclosure erroneous
            must depend on the particular circumstances of each
            case, taking into consideration the crime charged, the
            possible defenses, the possible significance of the
            informer’s testimony, and other relevant factors.

            Commonwealth v. Carter, 427 Pa. 53, 233 A.2d
            284, 287 (1967) (quoting Roviaro v. United States,
            353 U.S. 53, 60–62, 77 S.Ct. 623, 1 L.Ed.2d 639
            (1957)).

      Commonwealth v. Marsh, 606 Pa. 254, 260–261, 997 A.2d 318,
      321–322 (2010).

Commonwealth v. Watson, 69 A.3d 605, 607-608 (Pa. Super. 2013).

      In support of this issue, Appellant argues that the disclosure of the CI’s

identity is material to Appellant’s defense of mistaken identity. Appellant’s

Brief at 23. Appellant further avers that the CI was present for all of the buys



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and had the closest vantage point to Appellant. Id. Ultimately, Appellant

argues that fundamental fairness requires disclosure of the CI’s identity. Id.

At the hearing on the motion, when asked what evidence Appellant had that

supported the allegation, counsel replied that “[we] feel there is no credible

evidence against the defendant.” N.T. (Motions Hearing), 5/11/18, at 71. The

following exchange took place between Appellant’s counsel and the trial court:

      The court:      In a case like this, Ms. Williams, why is the motive
                      of the confidential informant material? Why is that
                      even relevant? These officers were there and
                      watched these deals go down. Whether this
                      informant was a hired gun or was being paid to do
                      this or whether he did this out of the goodness of
                      his heart, the bottom line is your client allegedly
                      exchanged drugs for money in front of these
                      detectives on four separate occasions. Why is the
                      motive of the CI even material?

      Ms. Williams:   My position is motive and bias is always relevant.

                                    * * *

      Ms. Williams:   Okay, but this is 18 months later with no other
                      evidence, no photographs, no phone records,
                      nothing else.

      The court:       But my question to you is, what evidence do you
                       have of mistaken identity that a confidential
                       informant could possibly strengthen?

      Ms. Williams:    It is my position that the evidence is material and
                       it might alter the jury’s judgment.

      The court:       But why? You cannot just -- you cannot just
                       quote to me from case law. You have a burden
                       here of establishing materiality and it cannot just
                       be tried based on case law.



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      Ms. Williams:    The testimony in this case is solely based on the
                       testimony of police officers with nothing to
                       corroborate it. And I think in a case like this,
                       given the totality of the circumstances, we’re
                       entitled to that in order for him to get a fair trial.

Id. at 73-74.

      As discussed above, Appellant must first show that the sought-after

information is material to the preparation of his defense. Marsh, 997 A.2d at

321-322.

      The defendant need not predict exactly what the informant will
      say, but he must demonstrate a reasonable probability the
      informant could give evidence that will exonerate him. More than
      a mere assertion that disclosure of the informant’s identity might
      be helpful is necessary. Only after this threshold showing that the
      information is material and the request is reasonable is the trial
      court called upon to determine whether the information is to be
      revealed.

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citations

omitted). The court will exercise its discretion to determine if the information

should be provided by balancing relevant factors, which are initially weighted

toward the Commonwealth. Marsh, 997 A.2d at 321-322.

      In the instant case, following a hearing on the pretrial motions, the court

found that Appellant failed to proffer any evidence of mistaken identity despite

being repeatedly asked for the same. N.T. (Motions Hearing), 5/11/18, at 91.

Specifically, the court noted that given the lack of evidence regarding the

defense of mistaken identity, Appellant had no more than “speculative hope”

that the CI would “identify someone else or refuse to testify or something

along those lines.” Id. The court further stated:



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            I do not find that disclosure of the C.I. is material to the
      stated defense that is allegedly going to be put forward in this
      case of mistaken identity. I find that the defendant has no
      evidence of mistaken identity. That the C.I.’s disclosure would
      bear upon other than speculative hope that the C.I. would identify
      someone else or refuse to testify or something along those lines.

            The [c]ourt in this matter has repeatedly asked for some
      offer of proof as to what evidence of mistaken identity exists and
      he received none.

Id. at 91-92. We agree with the trial court that Appellant failed to present

evidence establishing that the identity of the CI was material to any defense

he   intended   to    rely   upon,   including   that   of   mistaken   identity.

Commonwealth v. Watson, 69 A.3d 605, 609 (Pa. Super. 2013) (finding

trial court did not abuse its discretion in denying motion for identification of

the CI’s identity where the defendant failed to present credible evidence of

mistaken identity).

      To the extent Appellant relies upon Commonwealth v. Payne, 656

A.2d 77 (Pa. 1994), and Commonwealth v. Carter, 233 A.2d 284 (Pa.

1967), in support of his argument that the trial court erred, we note that both

cases involved a single occurrence or observation of the defendant by

undercover officers. Payne, 656 A.2d at 78; Carter, 233 A.2d at 286, 287.

In the instant case, the undercover officers who observed Appellant did so on

multiple occasions, and their identification of Appellant was bolstered by the

fact that additional officers were present and observed Appellant at the

locations where the drug transactions occurred.         See Commonwealth v.

Bing, 713 A.2d 56, 59 (Pa. 1998) (finding “the fact that there were numerous

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observations of the seller, although not legally determinative, weighs in favor

of the Commonwealth’s privilege.”).

      In a more recent case involving the identification of a confidential

informant, our Supreme Court found that the trial court erred when it granted

the defendant’s motion to identify a confidential informant where the

defendant failed to establish a material need for disclosure of the CI’s identity.

Marsh, 997 A.2d at 322.        In that case, the CI informed police that the

defendant was a large supplier of illegal drugs. Id. at 320. The CI described

the defendant and ultimately accompanied an undercover officer to make a

drug purchase from the defendant. Id. The defendant got into the back of

the officer’s car and removed four bags of cocaine from a bag he was holding.

Id. The defendant was arrested almost immediately following the exchange,

while he was still in the undercover officer’s car. Id. The defendant filed a

pretrial motion seeking disclosure of the identification of the CI because it was

material to his defense of mistaken identity. Id. Despite the fact that the

defendant was caught “red-handed,” the trial court granted the motion.

      Our Supreme Court ultimately found that the defendant failed to show

that the identity of the informant was material to his defense and that the

request was reasonable. The Court noted that the Commonwealth correctly

pointed out that the defendant did not present any evidence in support of his

motion; he simply made conclusory statements. Marsh, 997 A.2d at 322.




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The Court further stated, “[A]llegations alone do not supplant the need to

make an actual evidentiary showing.” Id. The Court advised:

      There can be no ambiguity in this regard, and we reiterate here
      the bedrock principle that there is no single determinative factor
      in deciding whether disclosure of an informant’s identity is
      required.     Rather, the determination must depend on the
      particular circumstances of each case, taking into consideration
      the crime charged, the possible defenses, the possible significance
      of the informants’ testimony and other relevant factors.

Id. at 322-323.

      In the instant case, as in Marsh, Appellant’s conclusory statements

failed to establish that the identity of the CI was material to his defense.

Moreover, Appellant was observed on multiple occasions by multiple officers;

thus, we discern no error or abuse of discretion on the part of the trial court

in denying Appellant’s motion to identify the CI.

      In his second issue, Appellant asserts that the trial court erred when it

denied his motion to sever charges.        Appellant’s Brief at 30. In support,

Appellant argues the consolidation of the offenses unduly prejudiced

Appellant, they would not have been admissible in a separate trial, and the

evidence was not capable of separation by a jury to avoid confusion. Id.

      “The determination of whether separate indictments should be

consolidated for trial is within the sole discretion of the trial court[,] and such

discretion will be reversed only for a manifest abuse of discretion or prejudice

and clear injustice to the defendant.” Commonwealth v. Boyle, 733 A.2d

633, 635 (Pa. Super. 1999). Indeed:


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           The court may order separate trials of offenses or
           defendants, or provide other appropriate relief, if it
           appears that any party may be prejudiced by offenses
           or defendants being tried together.

     Pa.R.Crim.P. 583. Under Rule 583, the prejudice the defendant
     suffers due to the joinder must be greater than the general
     prejudice any defendant suffers when the Commonwealth’s
     evidence links him to a crime. Commonwealth v. Lauro, 819
     A.2d 100, 107 (Pa. Super. 2003).

           [T]he “prejudice” of which Rule [583] speaks is not
           simply prejudice in the sense that [an] appellant will
           be linked to the crimes for which he is being
           prosecuted, for that sort of prejudice is ostensibly the
           purpose of all Commonwealth evidence. The
           prejudice of which Rule [583] speaks is, rather, that
           which would occur if the evidence tended to convict
           [the] appellant only by showing his propensity to
           commit crimes, or because the jury was incapable of
           separating the evidence or could not avoid cumulating
           the evidence.

     Id. (emphasis in original) (quoting Commonwealth v. Collins,
     550 Pa. 46, 703 A.2d 418, 423 (1997)). Moreover, “the admission
     of relevant evidence connecting a defendant to the crimes charged
     is a natural consequence of a criminal trial, and it is not grounds
     for severance by itself.” Id. (quoting Collins, 703 A.2d at 423).

     Reading these rules together, our Supreme Court established the
     following test for severance matters:

           Where the defendant moves to sever offenses not
           based on the same act or transaction that have been
           consolidated in a single indictment or information, or
           opposes joinder of separate indictments or
           informations, the court must therefore determine:
           [1] whether the evidence of each of the offenses
           would be admissible in a separate trial for the other;
           [2] whether such evidence is capable of separation by
           the jury so as to avoid danger of confusion; and, if the
           answers to these inquiries are in the affirmative,
           [3] whether the defendant will be unduly prejudiced
           by the consolidation of offenses.

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      Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark, 518
      Pa. 290, 543 A.2d 491, 496–97 (1988)).

Commonwealth v. Ferguson, 107 A.3d 206, 210-211 (Pa. Super. 2015).

We also note that Appellant bears the burden of establishing prejudice. Id.

at 210. “The general policy of the law is to encourage joinder of offenses and

consolidation of indictments when judicial economy can thereby be effected,

especially when the result will be to avoid the expensive and time consuming

duplication of evidence.” Commonwealth v. Patterson, 546 A.2d 596, 600

(Pa. 1988). Pursuant to Pa.R.Crim.P. 582:

      (1)   Offenses charged in separate indictments or informations
            may be tried together if:

            (a)   the evidence of each of the offenses would be
                  admissible in a separate trial for the other and is
                  capable of separation by the jury so that there is no
                  danger of confusion; or

            (b)   the offenses charged are based on the same act or
                  transaction.

Pa.R.Crim.P. 582 (1)(a) and (b).

      Appellant argues that trying his cases together amounted to an avenue

to “improperly admit prior bad acts evidence.”        Appellant’s Brief at 30.

Appellant argues that he was unduly prejudiced because the jury “could not

avoid cumulating the evidence” and that the evidence improperly bolstered

the testimony of the police officers. Id. at 32. Appellant asserts that separate

identifications on separate dates blurred into one identification of Appellant.

Id. at 33. Appellant further claims that the March 28 th and May 31st buys

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were not “inherently connected” to the May 4th and May 5th buys. Id. at 35.

Finally, Appellant avers that there was a risk of confusion to the jury due to

the number of cases and testifying officers, who had different involvement

and visibility. Id. at 36.

      Instantly, Appellant was charged with four counts of PWID, four counts

of delivery of a controlled substance, and four counts of possession of a

controlled substance following four incidents, which occurred within less than

sixty days of one another. In his brief, Appellant admits that “[t]hough the

incidents may have had similarities on their face, those were merely

characteristics common to many drug busts.” Appellant’s Brief at 35. We

disagree with Appellant’s characterization of the four incidents.

      In Commonwealth v. Boyle, 733 A.2d 633 (Pa. Super. 1999), this

Court found that the trial court did not err in refusing to sever because the

following testimony revealed a common scheme

      in which a deal for a specified dollar amount of powder cocaine
      was set up by the CI using Appellant’s coded page number and
      waiting for Appellant to call back. A meeting place was set to
      which the CI and the undercover agent drove in an unmarked
      vehicle and waited for Appellant, who on each occasion, working
      with a group of co-conspirators, quickly obtained the amount of
      cocaine. Appellant then delivered the drug to the CI or the
      undercover agent and was paid in cash. These multiple drug
      deliveries were clearly related and revealed a common plan
      through which Appellant could and did obtain and deliver cocaine
      when money was offered.

Id at 636-637.       The Court found that the “the details of Appellant’s

involvement in one transaction tends not to prove Appellant’s propensity to


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commit crimes, but rather the likelihood that he was involved in each

transaction.” Id. at 637. Ultimately, the Court concluded that the trial court

did not err when it denied the defendant’s motion to sever because “each

delivery possessed a common scheme….” Id. We draw the same conclusion

herein.

       Indeed, a review of the record establishes that each delivery possessed

a common scheme. The same CI contacted Appellant in each incident, and

the parties agreed upon a location to exchange heroin for money. All of the

buys happened within sixty days of one another, and they all occurred in the

same area. In each exchange, Appellant provided stamp bags of heroin in

exchange for funds.       Moreover, the CI used the same telephone number to

contact Appellant–412.612.0668–for the March 31, 2015, May 4, 2015, and

May 5, 2015 buys. N.T. (Trial), 10/23/19, at 94; N.T. (Trial), 10/24/19, at

275-276. Further, testimony from the police officers involved in the May 4,

2015, May 5, 2015, and May 28, 2015 transactions establish that Appellant

arrived to the drug buys in a silver Chevy automobile. N.T. (Trial), 10/23/19,

at 142, 172; N.T. (Trial) 10/24/19, at 244.3

____________________________________________


3 We also note that several of the detectives were involved in more than one
of the exchanges–for example Officer Moore provided cover surveillance for
the May 28, 2015 sale and was in the CI’s vehicle when the May 4, 2015 and
May 5, 2015 deals occurred. N.T. (Trial), 10/23/19, at 140, 146, 181.
Similarly, Officer Granata was involved in both the March 31, 2015 and the
May 4, 2015 buys, providing cover surveillance. N.T. (Trial), 10/24/19, at
219, 220-221. Chief Klein was involved in the May 4, 2015 and the May 5,
(Footnote Continued Next Page)


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       Appellant also avers that the evidence was not capable of separation by

the jury.    Appellant’s Brief at 36.          We do not agree.   Each of the four

transactions in this case was initiated by the CI. The CI and an undercover

officer drove to a location and met with Appellant. Each transaction involved

the delivery of distinct stamp bags of heroin–with different names or brands

stamped on the bags.         As in Boyle, where we found that the “testimony

involved a limited number of actors and essentially the same conduct, and

provided a pattern of facts to the jury which was not complex,” there was no

risk of confusing the jury. See Boyle, 733 A.2d at 637.

       Finally, Appellant has failed to establish that he was prejudiced by the

trial court’s decision.     Appellant argues that the joinder of cases allowed

“highly prejudicial prior bad acts evidence” into a trial. Appellant’s Brief at 35.

He asserts that he was prejudiced by the separate identifications from

separate days which blurred into a single identification of Appellant. Id. at

33.    The actions of the jury, however, make clear that it was able to

differentiate between the transactions, consider each charge separately, and

not cumulate the evidence. Commonwealth v. Dozzo, 991 A.2d 898, 903

(Pa. Super. 2010) (where jury found defendant not guilty of several charges,

it demonstrated the jury did not cumulate evidence and considered all of the

charges).    Indeed, the jury in this case found Appellant not guilty of any


____________________________________________


2015 buys. Id. at 242. Finally, we note that Detective Farmerie was involved
in the March 31, 2015 buy as well as the May 4, 2015 buy. Id. at 268, 271.

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charges stemming from the May 4, 2015 buy. N.T. (Trial), 10/24/19, at 452-

453; Criminal Information, 3/31/2017, at 4. Thus, “the presentation of the

evidence, the court’s jury instructions, and the jury verdict demonstrated that

the jury was able to and did separate the evidence for each case when it

rendered its verdict.”    Dozzo, 991 A.2d at 903 (citing Pa.R.Crim.P. 582;

Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997)). Appellant is due no

relief on this issue.

      In his final issue on appeal, Appellant argues that the trial court erred

when it refused his motion for an adverse jury instruction based on the

Commonwealth’s refusal to make the CI available to the defense. Appellant’s

Brief at 37.   We review a challenge to a jury instruction for an abuse of

discretion or error of law. Commonwealth v. Rush, 162 A.3d 530, 540 (Pa.

Super. 2017). Moreover, we note that the “trial court is not required to give

every charge that is requested by the parties and its refusal to give a

requested charge does not require reversal unless the appellant was

prejudiced by that refusal.” Id.

      Our Supreme Court has articulated what has come to be known
      as the “missing witness” adverse inference rule as follows:

             When a potential witness is available to only one of the
             parties to a trial, and it appears this witness has special
             information material to the issue, and this person’s
             testimony would not merely be cumulative, then if
             such party does not produce the testimony of this
             witness, the jury may draw an inference that it would
             have been unfavorable.




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      Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
      239, 241 (1983) (quotations, citations and emphasis omitted).
      However, this Court has summarized the circumstances that
      preclude issuance of the instruction as follows:

      1. The witness is so hostile or prejudiced against the party
      expected to call him that there is a small possibility of obtaining
      unbiased truth;

      2. The testimony of such a witness is comparatively unimportant,
      cumulative, or inferior to that already presented;

      3. The uncalled witness is equally available to both parties;

      4. There is a satisfactory explanation as to why the party failed to
      call such a witness;

      5. The witness is not available or not within the control of the party
      against whom the negative inference is desired; and,

      6. The testimony of the uncalled witness is not within the scope of
      the natural interest of the party failing to produce him.

      Commonwealth v. Boyd, 356 Pa.Super. 302, 308-09, 514 A.2d
      623, 626 (1986) appeal denied, 515 Pa. 618, 531 A.2d 427
      (1987) (Johnson, J., concurring) (citing Commonwealth v.
      Harley, 275 Pa.Super. 407, 413, 418 A.2d 1354, 1357 (1980)).

Commonwealth v. Evans, 664 A.2d 570, 573-574 (Pa. Super. 1995).

      Appellant argues that the CI had special information that would not have

been cumulative of other testimony because of his or her past relationship

with Appellant, and because the CI was closest to Appellant during the drug

buys. Appellant’s Brief at 39. In support of his argument, Appellant relies

upon Evans, 664 A.2d 570. Evans, however, is not instructive in this case

as it involved a single interaction between the defendant and a police officer,

whereas, the instant case involved several interactions with multiple police


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officers. Moreover, the defendant in Evans did not file a motion seeking the

identity of the CI, while in this case the trial court heard evidence and

argument and determined that the Commonwealth did not have to identify

the CI, as discussed supra.

        In Commonwealth v. Delligatti, 538 A.2d 34, 39-40 (Pa. Super.

1988) this Court found no error on the part of the trial court when it denied

the defendant’s request for a missing-witness instruction. In that case, the

defendant filed a motion seeking the disclosure of the identity of the CI, which

the trial court denied.       The appellant also argued the trial court erred in

refusing to give a missing-witness instruction. Id. at 39-40. This Court found

as follows:

        We conclude that the Commonwealth supplied the trial court with
        a satisfactory reason for not calling the informant to testify during
        trial. Namely, the informant’s identity was confidential. It is
        obvious that, had the informant been called as a witness to testify,
        the Commonwealth’s objective of protecting the informant’s
        anonymity would have been stymied. Accordingly, we find no
        merit in Appellant’s argument.

Id. at 40.

        Here, the trial court heard argument and testimony on the identity of

the CI and ultimately determined that the disclosure of the witness was not

material to Appellant’s defense.         The court denied Appellant’s motion to

identify the CI. We agree with the Commonwealth’s argument that if the trial

judge     had   agreed   to    provide    the     missing-witness   instruction,   the

Commonwealth would have been placed in the untenable position of being


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“penalized for exercising its legitimate right to keep the identity of its

informant confidential.” Commonwealth’s Brief at 25.

      Finally, we note that at the hearing on the motion to disclose the identity

of the CI, the trial court heard testimony regarding the Commonwealth’s

safety concerns for the CI in addition to the issues relating to materiality. N.T.

(Motions Hearing), 5/11/18, at 79-90. During that portion of the hearing,

Officer Donald Temple testified that he was concerned about the CI’s safety.

Id. at 80. The Commonwealth presented evidence of Appellant’s prior arrests

and/or convictions for intimidating a witness and terroristic threats as well as

carrying a firearm without a license. Id. at 81-85. The trial court held, “I do

find that the officer’s concern for [the] safety of the confidential informant is

a reasonable one. Most especially because of the nature of some of these

convictions, not arrests, but convictions.” Id. at 92-93. We discern no abuse

of discretion in the trial court’s determination. See Boyle, 733 A.2d at 639

(finding no error where trial court denied missing witness instruction where

the Commonwealth posited the satisfactory explanation for non-production of

a witness, including, inter alia, concerns for the CI’s safety ); see also

Commonwealth v. Jones, 637 A.2d 1001, 1006 (Pa. Super. 1994) (same).

Appellant has failed to show the trial court erred when it denied his request

for the missing witness jury instruction.

      For all the foregoing reasons, the judgment of sentence is affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2021




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